FOGARTY /
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Web: http://amvif.com/ / 16 MANN AVENUE
NORTHGATE QLD 4013
AUSTRALIA
Sunday, 8 July 2012
Monique,
I thought I might give you some background on what I’ve done and why it’s a different approach to John Atkins’ situation than John is using.
Priority for this would be after fraud matters detailed in Excel file “Index ABC.xls”In preparing this material for you I’ve realised that you and your reporter could do something very spectacular and that is to get John his TPI during your interview process.
Although I need to do some detailed support material for you the essence of the plan is fairly simple:
1. The Minister (for Veterans’ Affairs) always retains the powers he or she delegates.
2. In John’s case all of the departmental decision makers should be considered ineligible because of “perceived bias”.
3. An “error of law” has occurred in John’s case because DVA have imposed an “onus of proof” on John in relation to the letter sent by Barry James Billing to DVA alleging that John had forged an email from a doctor.
4. An “error of law” has occurred by the VRB, and therefore by DVA, in relation to the “stressor” for PTSD causation.
There is good supporting material available – it needs me to put this together in a package for you.
You could present this option (ultimatum?) to the Minister in a face to face interview. Typically if the Minister didn’t agree to a face to face interview you’d broadcast the interview anyway.
I have thought for some years now that the only way to get some justice within bureaucracies is by way of criminal prosecution. If that seems harsh it’s worth remembering that every time an Australian Serviceperson is sent on active service the government is prepared to have that person killed or injured.
I’m not a lawyer but “way back when” I worked as a Tax Assessor for the Taxation Department, as it was then known. The basics I learnt from that were that “the law” is the combination of the legislation and the interpretations provided by the courts. I.e. the “case law”.
What confuses many people is that the critical standard of proof is the “reverse beyond reasonable doubt” standard. Maybe similar to meaning your right hand when someone says left hand. Easy to get confused.
I’ve researched the critical High Court cases that deal with this. There is also a landmark Federal Court case of “Deledio”. It is a very well crafted decision by Justice Peter Heerey which relies on High Court precedents so it is as powerful as a High Court decision. Most people involved in the DVA decision processes know the name, but from my research I don’t think many of them have read the court cases.
Whilst there is a relatively small number of High Court cases there are a very large number of Federal Court cases – I estimated about 400 some years ago.
The difficulty this poses is that a hierarchy applies to precedents. There is no classification of this hierarchy that I am aware of. So decision makers would have to do their own classification and it doesn’t appear that they do this. The significance of this is that, say, a single judge Federal Court case could disagree with one of the relevant precedent cases. However unless that case is higher up the hierarchy it cannot overrule the other case. My observation is that decision makers appear not to even consider this aspect.
Primarily I’m concerned with researching John’s TPI claim but Harry Kirkman’s letter and associated matters deserve priority treatment. If justice is done it should destroy the top echelons of DVA. John’s claim is inextricably linked with Barry James Billing who was jailed for fraud circa 1980 committed whilst he was a soldier. The subsequent frauds by Billing have been largely ignored by the DVA bureaucracy in what appear to be criminal actions. Matthew Clarke the NSW detective who handled the prosecution for Billing indicated he had never been so disappointed with the NSW justice system. Billing beat the system using the Mental Health Act.
There is also a letter lodged by Barry Billing claiming that John had forged an email purporting to be from one of his treating doctors. A copy has been obtained under FOI. In all the circumstances it is unlikely that John even had the ability to do this. In any event the law has been incorrectly applied against John.
VEA Section 120 (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
DVA haven’t dealt with the effects of Billing acting as an “advocate” for many veterans. He was either a criminal or suffering from a mental disability sufficient for him to avoid being tried in court. Either way he was hardly competent to represent veterans. The affected veterans should be able to have their cases determined afresh.
I’ve researched 42 cases for Advocates (mainly) since 2005. Typically their files contain several hundred pages. I scan the entire files into my computer. After that I read them and research the relevant case law, legislation etc. From that process I’ve developed the case law index etc.
DVA have for many years had a “CLIK” CD.
Now it’s on their web site – access details below:
I’ve used it as a basis for some of my research over the years.
Department of Veterans' Affairs home page
CLIK
http://www.dva.gov.au/aboutDVA/publications/corporate/clik/Pages/index.aspx